NLRB Rejects Employer’s Code of Conduct

The National Labor Relations Board (NLRB) recently rejected several “anti-bullying” provisions in a hospital’s employer handbook after finding they could interfere with workers’ rights to act to improve their working conditions.

A three-member NLRB panel ruled 2-1 that the questioned questioned provisions were so over-broad and imprecise that they could be used to penalize workers who engaged in lawful conflict under the National Labor Relations Act (NLRA), such as expressing a concern about working conditions or questioning the professional capabilities of a physician or nurse.

The case involved the termination of two nurses by William Beaumont Hospital in Royal Oak, Michigan, for allegedly bullying and intimidating new nurses. The nurses, Jeri Antilla and Deanna Brandt, argued their complaints were protected by the NLRA and involved under-staffing and patient safety.

The NLRB majority ruled the following prohibitions in the hospital’s employer handbook were unlawful :

Conduct that “impedes harmonious interactions and relationships”

Verbal comments or physical gestures directed at others that exceed beyond the bounds of fair criticism.

Negative or disparaging comments about the professional capabilities of an employee or physician made to employees, physicians, patients, or visitors.”

“Behavior that is. . . counter to promoting teamwork.”

The dissent contended that the NLRB has made employers “afraid of articulating work rules (to the detriment of employees, patient safety, and a wide range of legitimate employer interests).”

The board upheld several challenged provisions in the hospital’s handbook, finding them to be lawful. These include prohibitions against “[w]illful and intentional threats, intimidation, harassment, humiliation, or coercion of employees, physicians, patients or visitors;” “[p]rofane and abusive language directed at employees, physicians, patients or visitors;” “[b]ehavior that is rude, condescending or otherwise socially unacceptable;” “[i]ntentional misrepresentation of information;” and “[b]ehavior that is disruptive to a safe and healing environment.”

Neither Antilla nor Brandt were reinstated. The NLRB upheld the lower court’s finding thatruled they would have been fired regardless of their protected complaints for “negative, intimidating and bullying behavior.”